ipcia m. kercado-melendez v. awilda aponte-roque, etc., 829 f.2d 255, 1st cir. (1987)

7/26/2019 Ipcia M. Kercado-Melendez v. Awilda Aponte-Roque, Etc., 829 F.2d 255, 1st Cir. (1987)

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829 F.2d 255

41 Ed. Law Rep. 1240

Ipcia M. KERCADO-MELENDEZ, Plaintiff, Appellee,

v.

Awilda APONTE-ROQUE, etc., Defendant, Appellant.

No. 86-1853.

United States Court of Appeals,

First Circuit.

Heard May 7, 1987.

Decided Sept. 22, 1987.

I. BACKGROUND

Carlos Del Valle, with whom Hector Rivera Cruz, Secretary of Justice,

Ramirez & Ramirez and Marcos A. Ramirez Irrizarry, Hato Rey, P.R.,

were on brief, for defendant, appellant.

Hector Gonzalez Lopez, with whom Hector Urgell Cuebas and Pedro

Miranda Corrada, San Juan, P.R., were on brief, for plaintiff, appellee.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY,* Senior

District Judge.

BOWNES, Circuit Judge.

1 Defendant-appellant Awilda Aponte-Roque, Secretary of the Department of

Public Instruction (DPI) in Puerto Rico, appeals a judgment entered against her

in a section 1983 suit brought by plaintiff-appellee Ipcia M. Kercado-Melendez.

Kercado had alleged that she was fired from her position as superintendent of

the Dorado School District because of her political affiliation with the Partido

Nuevo Progresista (PNP). The United States District Court for the District of

Puerto Rico, sitting without a jury, ordered Kercado reinstated to her former

position, and awarded her over $37,000 in back pay and damages. This appeal

by Aponte followed.

Ipcia Kercado worked for the Department of Public Instruction for eighteen



years, rising through the ranks until she attained the position of superintendent

for the Dorado School District. Kercado was well known in Dorado as a

prominent member of the Partido Nuevo Progresista, which was deposed as

Puerto Rico's ruling party by the Partido Popular Democratico (PPD) in the

election of 1984. In January, 1985, Awilda Aponte-Roque, a PPD member, was

appointed Secretary of the DPI.

3 On October 28, 1985, Kercado received a complaint1 from the Secretary of

Public Instruction cancelling her teaching certificate and dismissing her as

superintendent of the Dorado School District. It charged Kercado with

incompetence, negligence, insubordination, and improper conduct. Kercado

was accused of keeping two teachers in administrative positions during the

month of August, 1985, when they should have begun to resume their teaching

duties. It was also alleged that she improperly impeded the Dorado district's

assistant superintendent, Hector Lopez Maldonado, from performing his duties.In addition, Kercado was charged with failing to process fourteen teacher

assistant appointments.

4 The complaint informed Kercado that Aponte, in her capacity as Secretary of

the DPI, had decided to "permanently cancel your teacher certificate(s) which

you hold in order to teach in the public and private schools of the

Commonwealth of Puerto Rico and [to] dismiss you from your post." The

cancellation order which became effective upon receipt by Kercado stated that, pursuant to Puerto Rico law, she had ten days to appeal the order to the Board

of Appeals of the Public Education System. Such an appeal would stay the

effect of the cancellation order, substituting in its stead a suspension of

Kercado's employment and salary pending the outcome of her appeal. The

order further stated that if Kercado did not appeal the cancellation within ten

days, it would become "final and binding."

5 On November 5, 1985, Kercado filed an appeal with the Board of Appeals,

which scheduled a hearing on the charges for November 27. On November 7,

Kercado instituted an action in the United States District Court for the District

of Puerto Rico, claiming that her dismissal was prompted by her affiliation with

the PNP. Kercado also asserted that she had been denied due process, because

she had not been given an opportunity to respond to the charges against her

prior to the Secretary's termination action. She sought either a temporary

restraining order or a preliminary injunction. The following day, November 8,

Kercado withdrew her appeal from the Board of Appeals.

6 After Kercado had filed her action in federal court, and withdrawn her



II. THE ISSUES

administrative appeal, the Secretary invited her to appear at an informal hearing

scheduled for November 14, 1985. Kercado wrote a letter to the Secretary in

which she declined the invitation to appear at the informal hearing. In the letter,

she noted that a "show cause" hearing was scheduled in federal court on

November 18, which would address the issue of whether the failure to grant her

a hearing before the issuance of the cancellation order violated her due process

rights. On November 18, the Secretary dismissed all charges against Kercadoand reinstated her as superintendent of the Dorado School District.

7 One week later, the Secretary tried again to dismiss Kercado. On November 25,

Kercado received a letter requesting her presence at an informal hearing on

charges against her. The hearing took place the following day, November 26,

before Elba Rodriguez Fuentes, Director of the Legal Division at the DPI.

Kercado was read the charges against her and given the opportunity to respond.

No evidence or witnesses were presented by either side at the hearing.

8 On December 9, Kercado was served with an order cancelling her

superintendent's certificate and dismissing her from employment with the DPI.

The December 9 order enumerated the same charges contained in the October

28 order, albeit in a more condensed form. The order notified Kercado of her

right to file an administrative appeal, and informed her that a failure to file such

an appeal within ten days would render the order "final and binding."

9 Kercado declined to file an administrative appeal; instead, she pressed her

action in the federal court. She amended her original complaint and sought

injunctive relief and damages under 42 U.S.C. Sec. 1983. The district court

agreed with Kercado that she had been dismissed from her position as

superintendent because of her political affiliation with the PNP. The court

found the charges brought by the Secretary against Kercado to be without

merit. It noted further that, even accepting the facial validity of the Secretary's

allegations, they were not serious enough "to warrant the discharge of anemployee of plaintiff's caliber who had been with the DPI for eighteen years."

(Emphasis in original.) The court also held that Kercado had been deprived of

her due process rights when the Secretary dismissed her on October 28, 1985,

without granting her a pretermination hearing. Accordingly, the district court

ordered the Secretary to reinstate Kercado as superintendent of the Dorado

School District, 641 F.Supp. 1326. Kercado was awarded $12,074.50 in back

pay, $15,000 in actual damages and $10,000 in punitive damages.

10 There are four issues on appeal. First, the Secretary urges that the district court



Abstention

should have abstained from hearing the case because Kercado could have

pressed her claims in the state administrative appeal that was available to her.

The Secretary points out that, had Kercado been dissatisfied with the result in

the administrative proceeding, she could have appealed the decision to the

commonwealth courts of Puerto Rico. Second, Aponte submits that the court

erred in holding that Kercado's due process rights were violated, since she

could have filed an administrative appeal and received a hearing before her termination became fully operative. Third, the Secretary also contends that the

district court erred in finding that Kercado had been dismissed for political

reasons. She argues that the charges brought against Kercado were substantive

and legitimate grounds for dismissal. Fourth, it is argued that the district court

erroneously granted Kercado compensatory and punitive damages. We consider

each of these contentions seriatim.

11 The Secretary avers that the district court erred when it failed to dismiss the

case in accordance with the doctrine established in Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The federal plaintiff in Younger, John

Harris, Jr., was being prosecuted under a state criminal syndicalism statute. He

asked a three-judge federal district court to enjoin state criminal proceedings

instituted against him, alleging that his prosecution would immediately and

irreparably injure his first amendment rights. The three-judge court held thatthe criminal syndicalism statute was void due to vagueness, and restrained the

state from further prosecution of Harris. The Supreme Court reversed, holding

that the district court should have abstained from hearing Harris' claim. The

Court stated that considerations of federalism and comity dictated that a federal

court should refrain from deciding broad constitutional challenges to the

legitimacy of a state criminal proceeding, provided that the state proceeding

was undertaken in good faith and the federal plaintiff was given an adequate

opportunity to press his constitutional claims in the state forum. Younger v.Harris, 401 U.S. at 43-53, 91 S.Ct. at 751-55.

12 Since Younger, the Supreme Court has invoked the abstention doctrine to

overturn federal court challenges to the constitutionality of pending state civil

proceedings. Penzoil Co. v. Texaco, Inc., --- U.S. ----, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987); Middlesex Ethics Committee v. Garden State Bar

Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v.

Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v.Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v.

Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue,

Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Those cases featured



federal plaintiffs who had lodged broad constitutional attacks on the legitimacy

of state civil proceedings instituted against them. In each case, the federal court

was asked to enjoin a contemporaneous state civil proceeding pending against

the federal plaintiff; the relief sought by the federal plaintiff was directed

specifically at the pending state proceeding. Here, Kercado had not requested

the federal district court to enjoin any state civil proceeding pending against

her. Such a prayer would have been futile because the Secretary had alreadycompleted dismissal proceedings against Kercado; by its own terms, the order

of dismissal became effective upon its receipt by Kercado. Accordingly, there

were no proceedings for the district court to enjoin.

13 The Secretary urges, however, that because Kercado could have appealed the

dismissal to the DPI Board of Appeals, the district court should have abstained

and thereby forced Kercado to litigate her constitutional claims in a Puerto Rico

forum. In effect, the Secretary argues that Kercado should not have been permitted to bring a section 1983 suit in federal court because of the availability

of an appeal within the Puerto Rico administrative and judicial apparatus. The

Supreme Court, however, has held expressly that section 1983 claimants need

not avail themselves of state judicial and administrative remedies before going

to federal court. Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct.

2557, 73 L.Ed.2d 172 (1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94

S.Ct. 1209, 1222-23, 39 L.Ed.2d 505 (1974). The federal plaintiff in Patsy

alleged that she had been denied employment opportunities by FloridaInternational University on the basis of race and sex. Rather than pursue

available state administrative remedies, she chose to file a section 1983 claim in

federal court. The Supreme Court rejected "the argument that a section 1983

action should be dismissed where the plaintiff has not exhausted state

administrative remedies." Patsy v. Florida Board of Regents, 457 U.S. at 500,

102 S.Ct. at 2559.

14 The Secretary relies heavily on the Court's decision in Ohio Civil RightsCommission v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91

L.Ed.2d 512 (1986), which held that the principles of Younger abstention apply

to pending state administrative, as well as state judicial, proceedings. The Ohio

Civil Rights Commission instituted a state administrative proceeding against

Dayton Christian Schools, alleging that it had dismissed a teacher because of

her sex and her efforts to assert her legal rights. Dayton responded by asserting

that the first amendment prohibited the Commission from exercising authority

because the dismissal of the teacher had been undertaken pursuant to internalguidelines grounded in sincerely held religious beliefs to which all of its

employees subscribed. While the state administrative proceeding was pending,

Dayton Christian Schools filed a section 1983 action in federal court claiming



that the administrative proceeding instituted by the Ohio Civil Rights

Commission violated its first amendment right to free exercise of religion.

15 The Supreme Court ruled that the interests of comity and federalism rendered

abstention appropriate under such circumstances. It held that Ohio had an

important interest in regulating schools, even private religious schools. The

Court also noted that Dayton Christian Schools would have an opportunity toraise its constitutional claims in the state administrative proceeding. Justice

Rehnquist, writing for the majority, stressed that the Court's decision in Dayton

Christian Schools did not conflict with its earlier holding in Patsy:2The

application of the Younger principle to pending state administrative

proceedings is fully consistent with Patsy v. Florida Board of Regents, 457 U.S.

496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), which holds that litigants need not

exhaust their administrative remedies prior to bringing a Sec. 1983 suit in

federal court. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11, 95 S.Ct.1200, 1209-12, 43 L.Ed.2d 482 (1975). Unlike Patsy, the administrative

proceedings here are coercive rather than remedial, began before any

substantial advancement in the federal action took place, and involve an

important state interest.

16 Dayton Christian Schools, 106 S.Ct. at 2723 n. 2.

17 The crucial distinction between Dayton Christian Schools and Patsy is that in

Patsy the state proceeding was an option available to the federal plaintiff on her

own initiative to redress a wrong inflicted by the state. In Dayton Christian

Schools and the other abstention cases noted above, the federal plaintiffs

sought to enjoin a pending state proceeding which they did not initiate, but in

which their presence was mandatory. Here, unlike Dayton Christian Schools,

the administrative proceeding is remedial rather than coercive. The

administrative appeal process could be triggered only on Kercado's initiative if

she wished to pursue her remedies within the Puerto Rico administrativeframework. Patsy holds that she was not required to do so.

18 There is another important difference between Patsy and the abstention cases.

In Dayton Christian Schools and similar cases, the state proceeding is itself the

wrong which the federal plaintiff seeks to correct via injunctive relief under

section 1983. Those cases involved claims by plaintiffs that constitutional

rights would be violated by virtue of the operation of the state proceedings.

Comity and federalism concerns are at their highest in such cases since the

legitimacy of both the state proceeding and its underlying statutory predicate

are at stake. Abstention is appropriate in such instances because, absent bad

faith or an adequate opportunity to raise the constitutional challenge in the state



forum, state courts should have the first opportunity to construe the

constitutionality of their own proceedings. "Minimal respect for the state

processes, of course, precludes any presumption that the state courts will not

safeguard federal constitutional rights." Middlesex Ethics Comm. v. Garden

State Bar Ass'n., 457 U.S. at 431, 102 S.Ct. at 2521.

19 An inquiry into the appropriateness of abstention is warranted if the relief sought by the federal plaintiff is addressed directly to an ongoing state

proceeding. Moore v. Sims, 442 U.S. at 431, 99 S.Ct. at 2381. In Patsy and

cases like it,3 abstention was unnecessary because the federal plaintiffs did not

allege injury arising from, or seek relief directed to, an ongoing state

proceeding. Instead, the federal plaintiff claimed actual injury arising from

action undertaken and completed by state actors. Thus, the state interest at stake

was severely diminished because the federal plaintiffs were not seeking to

mount a broad, constitutional attack on the legitimacy of the state proceedingsor their underlying statutory predicate.

20 The dissent asserts that we can conclude that there is no challenge to an

ongoing state proceeding only by "artificially separating" the "notice" which

Kercado received on December 9 from the administrative remedy which was

available to her. We note first that the document which Kercado received on

December 9 was not simply a "notice," but was also an order cancelling her

teacher's certificate and dismissing her from employment. The dissent'sassertion that the dismissal order would take "effect only after the Board of

Appeals of the Public Education System holds a full public hearing on the

record" is flatly contradicted by the language of the order itself. It states: "The

present Order shall become effective upon notification and receipt of the same

by the accused." The issuance of the dismissal order, based on an

unconstitutional motive, constituted the legal wrong suffered by Kercado.

Kercado's rights were triggered at the moment the allegedly wrongful dismissal

became effective. We have made no "artificial" separation here; we havesimply separated the alleged wrong inflicted upon Kercado from the remedies

available to her.

21 The dissent errs by suggesting that there must be a hearing by the Board of

Appeals before the dismissal order becomes final and binding; there is no such

requirement. P.R.Laws Ann. tit. 18, Sec. 274b. Review by the Board of Appeals

is couched, by the language of the statute itself, as a remedy available to a

teacher who is dissatisfied with a dismissal order: "If not satisfied with theorder, the teacher thereby aggrieved may file a writ of appeal with the Board of

Appeals...." P.R.Laws Ann. tit. 18, Sec. 274c (emphasis added). The dissent's

description of the administrative appeal scheme omits a crucial fact: the



dismissed teacher must take affirmative steps to initiate the appeal to the Board

of Appeals. She cannot be coerced into appearing before the Board of Appeals,

but is provided with an administrative remedy should she choose to avail

herself of it. Undoubtedly, the administrative appeal scheme here is perfectly

adequate for handling the vast majority of teacher dismissals, which ordinarily

do not involve federal constitutional claims. But a teacher who alleges that her

dismissal was motivated by an unconstitutional purpose need not pursue her administrative remedies within the Commonwealth system, but may proceed

directly to federal court to press her claims. This is precisely the holding of

Patsy.

22 Despite the Court's clear holding in Patsy, the dissent contends that the District

Court of Puerto Rico should not have heard her claim until she had pursued her

administrative remedy. This fails to recognize that there is a significant

difference between a civil rights plaintiff who seeks to use the federal courts tostop or nullify an ongoing state proceeding in which she is a defendant, and a

civil rights plaintiff who has an option to initiate a state proceeding to remedy a

constitutional wrong perpetrated by a state actor. In the former case, abstention

is appropriate; in the latter, the Patsy rule prevails.

23 The dissent notes that the Court in Huffman v. Pursue, Ltd., 420 U.S. 592, 95

S.Ct. 1200, 43 L.Ed.2d 482 (1975), stated that "a necessary concomitant of

Younger is that a party ... must exhaust his state appellate remedies beforeseeking relief in the District Court." Subsequently, the Court restricted the

reach of this language, noting specifically that it applies only when a federal

plaintiff seeks to avoid state judicial appeals and, instead, use the federal courts

"to annul the results of a state trial." Wooley v. Maynard, 430 U.S. 705, 710-11,

97 S.Ct. 1428, 1433, 51 L.Ed.2d 752 (1977). Here, of course, the federal

plaintiff has made no such effort. Both Huffman and Pennzoil v. Texaco, ---

U.S. ----, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), also cited by the dissent, hold

that federal plaintiffs aggrieved by the results of a state trial must pursue their state judicial appeals before going to federal court. The instant case, like Patsy,

involves a federal plaintiff aggrieved by an allegedly unconstitutional

deprivation of employment by state officials. The Court has imposed no

requirement that she pursue her administrative remedies in such circumstances.4

24 We believe that this matter is controlled by the principles outlined in Patsy. The

instant case is not an appropriate occasion for abstention. The thrust of

Kercado's claim challenges the basis of the dismissal action undertaken andcompleted by the Secretary. Kercado could have sought to remedy this

allegedly wrongful act in a state administrative proceeding, but was not

required by law to do so. She also claimed that the Secretary deprived her of



Procedural Due Process

due process by not granting her a pretermination hearing prior to issuing the

letter of dismissal. Such a claim does not implicate abstention concerns since it

does not constitute a challenge to a pending state proceeding. The Secretary had

completed her action against Kercado who, in turn, alleged that the substance

and the procedural effectuation of that completed action violated the

Constitution. Because Kercado's claim did not involve a challenge to the

legitimacy of a pending state proceeding, we reject the Secretary's contentionthat the lower court should have abstained.

25 The Secretary disputes the district court's conclusion that Kercado's due process

rights were violated when she was deprived of a pretermination hearing prior to

receiving the dismissal order of October 28, 1985. Kercado's due process claim

depends on her having had a property interest in her employment.5 ClevelandBoard of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84

L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct.

2701, 2708-10, 33 L.Ed.2d 548 (1972). Property interests are not created by the

Constitution, but are rooted in an independent source such as state law.

Cleveland Board of Education v. Loudermill, 470 U.S. at 538, 105 S.Ct. at

1491. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2708-10. The

Secretary admits that a school superintendent is a career employee under Puerto

Rico law. 3 L.P.R.A. Secs. 1349-52 (1978). Puerto Rico law clearly gaveKercado a property interest in her position; her status as a "career" employee

permitted her to be fired only for "good cause." 3 L.P.R.A. Sec. 1336 (1978).

26 Since Kercado had a property interest in her employment, the relevant

constitutional question concerns what process is due her. The Supreme Court

has stated:An essential principle of due process is that a deprivation of life,

liberty or property "be preceded by notice and opportunity for a hearing

appropriate to the nature of the case." Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). We

have described "the root requirement" of the Due Process Clause as being " that

an individual be given an opportunity for a hearing before he is deprived of any

significant property interest in his employment." Boddie v. Connecticut, 401

U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original);

see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90

(1971). This principle requires "some kind of a hearing" prior to the discharge

of an employee who has a constitutionally protected property interest in hisemployment. Board of Regents v. Roth, 408 U.S. at 569-70, 92 S.Ct. at 2705;

Perry v. Silnderman, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698-99, 33 L.Ed.2d

570 (1972).



[I]f Schultz was indeed fired in violation of his due process rights, the availability of

post-deprivation grievance procedures or a board hearing would not have cured the

violation. Schultz was entitled to notice and a meaningful opportunity to respond

before he was terminated. If he was terminated without those protections, the

constitutional deprivation was then complete. Schultz need not have exhausted other

state remedies before bringing his section 1983 claim.

27 Cleveland Board of Education v. Loudermill, 470 U.S. at 542, 105 S.Ct. at

1493.

28 The Secretary does not dispute that Kercado was entitled to a pretermination

hearing prior to the first effort to dismiss her in October 1985. It is argued,

however, that the administrative appeal which Kercado could have pursued was

itself a pretermination hearing. The Secretary points out that the filing of anappeal by Kercado to the Board of Appeals would have suspended the effect of

the dismissal order. She contends, therefore, that the availability of an

administrative appeal provided Kercado with a pretermination hearing since the

dismissal order would not become fully effective until after a final decision by

the Board of Appeals.

29 We reject this argument. The dismissal order received on October 28 informed

Kercado that the Secretary had acted to "permanently cancel your teacher certificate(s) ... and ... dismiss you from your post." The order stated that it

became "effective upon the service and receipt" of it by Kercado. The plain

meaning of these words is that Kercado's discharge took effect on her receipt of

the order on October 28. That the binding effect of such an order would be

suspended upon the filing of an "appeal," does not transform that "appeal" into

a pretermination hearing.6 As the Eighth Circuit stated in the case of Schultz v.

Baumgart, 738 F.2d 231 (8th Cir.1984):

30

31 738 F.2d at 237 (emphasis in original).

32 Kercado's opportunity to appeal the Secretary's order after being informed of

the action is constitutionally inadequate; due process requires that she be given

notice of the charges and an opportunity to respond before the action is taken.

Cleveland Board of Education v. Loudermill, 470 U.S. at 546, 105 S.Ct. at

1496. We recognize that the Secretary was not obliged to conduct a full

evidentiary hearing prior to dismissing Kercado. Id. at 545, 105 S.Ct. at 1495;

Moody v. Town of Weymouth, 805 F.2d 30, 33 (1st Cir.1986). But Kercadowas not given notice of the charges and any opportunity to respond prior to the

Secretary's action on October 28. We affirm the district court's holding that her

procedural due process rights were violated.



The Motives Behind Kercado's Dismissal

33 The first amendment prohibits a government agency from dismissing public

employees based on their political affiliation unless membership is an

appropriate requirement for a particular position. Branti v. Frankel, 445 U.S.

507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96

S.Ct. 2673, 49 L.Ed.2d 547 (1976). The parties agree that political affiliation isnot a proper qualification for a school superintendent position.

34 The Secretary challenges the district court's conclusion that Kercado was

dismissed for political purposes. At trial, Kercado bore the initial burden of

demonstrating that her political affiliation was a substantial or motivating factor

underlying the Secretary's decision to discharge her. Mt. Healthy City School

District v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471

(1977); Rosaly v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). Once thatthreshold showing had been met, the Secretary was obliged to demonstrate that

Kercado would have been dismissed irrespective of her membership in the

PNP. We cannot uphold the verdict unless the trial court correctly found that

she would not have been dismissed "but for" her political affiliation with the

PNP. Mt. Healthy City School District v. Doyle, 429 U.S. at 287, 97 S.Ct. at

576; Rosaly v. Ignacio, 593 F.2d at 149. The district court made extensive

findings of fact with respect to the events leading up to Kercado's dismissal.

These factual findings must be accepted unless we are "left with a definite andfirm conviction that a mistake has been committed." Anderson v. Bessemer

City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Scarpa

v. Murphy, 806 F.2d 326, 329 (1st Cir.1986).

35 The district court ruled that Kercado carried her initial burden of proving that

her political affiliation was a substantial factor motivating her dismissal. Proof

of such an improper motive may be shown via circumstantial evidence. Rosaly

v. Ignacio, 593 F.2d at 149. The trial judge was aware of the highly charged political atmosphere in Puerto Rico following the PPD's election victory over

the PNP in 1984. He highlighted Kercado's long, active and visible membership

in the PNP. The evidence showed that the DPI Secretary and Undersecretary,

the DPI Regional Director for the region which included the Dorado district,

and the Regional Director's deputy, all were members of the PPD. The trial

judge noted that one of the charges filed against Kercado was based solely on a

statement by assistant superintendent Hector Lopez Maldonado, a well-known

PPD member who had once run for mayor of Dorado. The evidence revealedthat Kercado and Lopez had an extremely antagonistic relationship. The trial

court held that the Secretary's willingness to appoint Lopez as assistant

superintendent--despite widespread knowledge of his hostile relationship with



to see how defendant could honestly believe that plaintiff should have realized the

urgency of the situation and processed the aides immediately when it took the

Bayamon Regional Director, herself, over six weeks to make the selection--from

August 20, 1985 when the committee to select the aides met and no consensus wasreached, until October 4 when she sent plaintiff a letter with her choices for the

appointments. Plaintiff claims she received the letter October 11, 1985 and she was

dismissed October 28, 1985. This left her less than three weeks to process the

Kercado and stronger support from the appointments committee for two other

candidates--, and her refusal to investigate complaints about Lopez' conduct,

evidenced her willingness to politicize personnel decisions. Finally, the trial

court noted various instances in which the DPI officials investigating Kercado's

conduct failed to elicit Kercado's version of the events underlying the charges

against her. The court surmised that the investigators' conduct indicated that

they were more interested in building a case against Kercado to support her dismissal than in actually assessing the merits of the charges against her. We

agree with the district court that these circumstances, when taken together,

support a finding that Kercado's political affiliation was a substantial factor

motivating her dismissal.

36 After making this threshold determination, the trial court then focused on

whether Kercado would have been discharged "but for" her political affiliation

with the PNP. The court noted that in her eighteen years as a DPI employee,Kercado had never been reprimanded for her job performance, but instead had

been "steadily rewarded for her work with job promotions." The court then

undertook an evaluation of the merits of the four charges brought by the

Secretary against Kercado.

37 The first charge levied against Kercado alleged that she failed to process

fourteen teacher assistant appointments, in contravention of the order of Leida

Cintron, the DPI Regional Director for Bayamon. The committee assigned toappoint teacher assistants in Dorado met on August 20, 1985, but was able to

agree on only three candidates. The district court found that the failure to select

the other eleven candidates occurred in part because the Regional Director's

deputy, Maria Cordova, refused to accept the committee's recommendations.

The committee's inability to reach a consensus meant that Cintron herself

would choose the remaining teacher assistants. On October 4, 1985, six weeks

after the August meeting, Cintron sent Kercado a list of the additional eleven

appointees. The Secretary avers that Kercado's failure to process theappointments within three days constituted an act of insubordination. The

district court's analysis of the evidence on this point is unassailable. The court

failed

38



appointments. Given the fact that the Regional Director never gave plaintiff a time

limit to make the appointments and given the situation in plaintiff's office--that she

was shorthanded and it was the beginning of a school year--all facts of which

defendant was aware, we cannot find that defendant was sincere in believing

plaintiff's conduct was a purposeful refusal to follow the directives of her superior or

an overt act of insubordination worthy of dismissal.

39 The second and third charges brought against Kercado concerned her decision

to keep two teachers working in the superintendent's office during August,

1985, after they had been reinstated to their regular teaching positions. The

Secretary averred that such conduct was insubordinate, since it defied a DPI

directive ordering that all personnel be located in the work unit to which they

were assigned. An amendment to the directive provided that personnel could be

reassigned from their permanent positions in order to take care of "special

situations that may arise in a school or school district." Kercado maintained thather temporary use of the two teachers was prompted by the "special situation"

of severe understaffing in her office. It is undisputed that Kercado's office was

short on personnel during the summer of 1985. Indeed, on July 2, 1985,

Kercado sent a letter to the Governor complaining that fourteen positions in her

office remained vacant. She stated in the letter that she had unsuccessfully

complained about the shortage through the proper channels. A copy of this

letter was also sent to the Secretary. The Secretary does not deny that Kercado's

office was suffering personnel shortages, but submits that "understaffing doesnot justify hierarchical disobedience."

40 The evidence shows that Kercado received permission to use the two teachers

from their respective principals. There was no evidence that the temporary

reassignment of the teachers disrupted the schools in which they worked. The

trial judge found that temporary reassignments for "special situations" were

expressly permitted by the June 29 amendment to the DPI directive on teacher

reassignment. There was evidence that it has been a common practice totemporarily use teachers to perform administrative tasks in the superintendent's

office. Moreover, neither the DPI directive on reassignments, nor its June

amendment, specify particular procedures to be followed in order to

temporarily use a teacher to meet the special needs of the district. The district

court, therefore, concluded that with respect to charges two and three filed

against Kercado there was no evidence "to indicate a purposeful act of

insubordination by plaintiff which would warrant a dismissal."

41 The fourth charge against Kercado involved her dealings with assistant

superintendent Hector Lopez Maldonado. As mentioned earlier, it was evident

that there was considerable friction between Lopez and Kercado dating back



long before he was assigned to work with her in the same office. Nevertheless,

on September 19, 1985, slightly more than a month before Kercado was

dismissed, the Secretary ignored the recommendation of the appointments

committee and assigned Lopez to the position of assistant superintendent.

42 The Secretary charged Kercado with altering the duties of the assistant

superintendent, thereby disrupting the smooth functioning of the Dorado office.Kercado claimed that Lopez refused to perform his assignments and caused

problems for the staff in the office. There was ample evidence submitted by

Kercado documenting complaints levied by Dorado district personnel against

Lopez. In essence, this fourth charge involved a credibility contest between

Lopez and Kercado: each testified of harassment and antagonism from the

other; each accused the other of inhibiting the efficient operation of the Dorado

superintendent's office; and there was evidence that political motives

engendered the hostility they displayed toward one another. "[F]indings basedon witness credibility are lodged firmly in the province of the trial court and we

are loathe to disturb them absent a compelling showing of error." Scarpa v.

Murphy, 806 F.2d at 328; Anderson v. Bessemer City, 470 U.S. at 575, 105

S.Ct. at 1512-13. The trial judge accepted Kercado's assertion that Lopez's

abusive and uncooperative behavior forced her to relieve him of some of his

duties. The court characterized the Secretary's charge that Kercado refused to

give Lopez his proper assignments, as the "weakest" of all the allegations

brought against her. Indeed, the trial judge stated that "it is not an unfoundedconclusion that the Secretary, knowing the antagonism between plaintiff and

Lopez, appointed Lopez as Assistant Superintendent in order to harass the

plaintiff."

43 We see no reason to disturb any of the factual findings made by the district

court. The Secretary, in effect, has sought to reargue to this court the merits of

the charges it originally brought against Kercado. The trial judge's assessment

of the merits of those charges is entitled to considerable deference. SeeJimenez-Fuentes v. Torres-Gaztambide, 807 F.2d 236, 238-39 (1st Cir.1986)

(en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987); De

Choudens v. Government Development Bank, 801 F.2d 5, 7 (1st Cir.1986) (en

banc), cert. denied, --- U.S. ----, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). We

agree with the district court that, even conceding the facial validity of the

charges against Kercado, they are not so serious as to warrant the discharge of a

capable eighteen-year career employee. The district court correctly concluded

that, when the merits of these charges are considered, it is evident that they provide "little support for [the Secretary's] claim that [Kercado's] conduct was

insubordinate requiring the termination of her employment with DPI."

Accordingly, we affirm the district court's determination that Kercado would



Damages

not have been dismissed "but for" her political affiliation with the PNP.

44 The Secretary challenges the district court's award of compensatory and

punitive damages. Kercado proved that she had been dismissed from her job for

political reasons and had been deprived of her procedural due process rights.The district court reinstated Kercado and awarded her $12,074.50 in back pay.

Based on our reading of the record and the briefs, this appears to be in error.

The court apparently computed its back pay award from the date of plaintiff's

dismissal, October 28, 1985. Appellants claim, however, that Kercado was paid

through December 9, 1985, and she does not deny this. The court also granted

Kercado $15,000 to compensate for the pain and suffering caused by the

deprivation of her constitutional rights. Compensatory damages for mental and

emotional distress are recoverable for violations of rights protected by section1983. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 106 S.Ct.

2537, 2542-43, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 264, 98

S.Ct. 1042, 1052-53, 55 L.Ed.2d 252 (1978). When reviewing a challenge to

the basis of an award for compensatory damages, "we rely heavily on the

judgment of the trial court, who has had the benefit of hearing all of the

evidence and observing the demeanor of the witnesses." Clark v. Taylor, 710

F.2d 4, 13 (1st Cir.1983). Kercado testified of the emotional and mental distress

caused by her abrupt dismissal on October 28 and by the Secretary's second,and more successful, effort to discharge her in December. We find the district

court's award of $15,000 for compensatory damages reasonable under the

circumstances.7

45 The trial judge also awarded Kercado $10,000 in punitive damages. The court

concluded that the Secretary was "callously indifferent to plaintiff's federally

protected rights," thus warranting the imposition of punitive damages. Smith v.

Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983); Clark v.Taylor, 710 F.2d at 14. The Secretary's conduct, as found by the district court,

demonstrated a steadfast intent to discharge Kercado, irrespective of her

constitutional rights or the actual merits of the charges brought against her. The

award of punitive damages was therefore appropriate, and we do not find it

excessive.

46 Affirmed and remanded for a recomputation of the back pay award. Costs

awarded to appellee.

47 BREYER, Circuit Judge (dissenting).



48 I do not disagree with the majority about the basic principles of federal law that

apply to this case. On the one hand, a person who claims that someone has

violated his civil rights may bring suit in federal court under 42 U.S.C. Sec.

1983 without exhausting remedies that state law makes available. See Patsy v.

Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). On

the other hand, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971), and its progeny hold that if a state has already begun a state judicial or administrative proceeding against a person, that person may not proceed in

federal court, even with a Sec. 1983 suit, if that suit risks interfering with

important state interests and if the federal plaintiff can raise constitutional

challenges in the state proceedings. Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73

L.Ed.2d 116 (1982) (setting out basic test for invoking Younger-type

abstention); see Ohio Civil Rights Commission v. Dayton Christian Schools,

477 U.S. 619, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986) (extending theYounger doctrine, in the context of a Sec. 1983 action, to state administrative

proceedings).

49 I disagree with the majority, however, about the application of those principles

to this case. I think the plaintiff was, when she brought her federal suit, very

much in the midst of Commonwealth administrative proceedings. In the

Commonwealth, as in many states, local authorities cannot dismiss a tenured

teacher without fairly elaborate administrative proceedings that involve noticeof charges, a full-blown administrative hearing, and either an administrative

appeal, judicial review, or both. P.R. Laws Ann. tit. 18, Secs. 274-274o; see,

e.g., Cal. Educ. Code Secs. 44932-44945; N.J.Stat.Ann. Secs. 18A:6-10 to -27;

Wash.Rev. Code Secs. 28A.70.160-.170. Puerto Rico's statute provides that to

"cancel" or "suspend" a tenured teacher's educational certificate, the "Secretary

of Education ... shall serve on the teacher an order of suspension or cancellation

... jointly with a complaint specifying the charges." P.R. Laws Ann. tit. 18,

Secs. 274, 274a. The order "shall be final" after ten days only if the teacher does not "appeal" from it. P.R. Laws Ann. tit. 18, Sec. 274b. With a few

possible exceptions not here relevant, the order (regardless of what it says)

legally takes effect only after the Board of Appeals of the Public Education

System holds a full public hearing on the record, at which the teacher may be

represented by counsel, present evidence, and cross-examine the witnesses

presented by the education authorities. P.R. Laws Ann. tit. 18, Secs. 274d-274h.

If the Board decides against the teacher, he may obtain judicial review in the

Commonwealth courts. P.R. Laws Ann. tit. 18, Sec. 274l.

50 How can the majority find that the plaintiff was not in the midst of this

procedure when she brought her federal law suit? The majority seems to do so



Of the District of Massachusetts, sitting by designation

The document is a combined notice and order entitled "Complaint."

only by artificially separating the statute's "sending-the-order" provision from

the rest of the statute. The majority reads the "sending-of-the-order" provision

as if it permitted the Commonwealth to dismiss a teacher without a full-blown

hearing simply by sending the piece of paper called an "order", as if the

sending of that piece of paper constituted the legal wrong and all the rest

provided by the statute were but a state remedy. In any contested case,

however, the sending of the "order" and the hearing on "appeal" are stepswithin an integrated, statutory administrative scheme--a scheme similar to those

often used by states to dismiss tenured teachers. Unless one viewed Puerto

Rico's law as embodying an effort to dismiss tenured teachers without a hearing

(which neither the statutory language nor common sense suggest is so) this case

fits squarely within the Younger doctrine. Regardless, even if one calls the

hearing stage an administrative "appeal" from the sending of the "order,"

relevant Supreme Court precedent would still seem to require the plaintiff to

take such an appeal before bringing her Sec. 1983 action in federal court.Pennzoil v. Texaco, --- U.S. ----, 107 S.Ct. 1519, 1527 & n. 13, 95 L.Ed.2d 1

(1987) (holding in the context of a Sec. 1983 suit that the availability of a

judicial appeal renders a proceeding "pending" for purposes of Younger-type

abstention); Huffman v. Pursue, Ltd., 420 U.S. 592, 607-09 & n. 21, 95 S.Ct.

1200, 1211 & n. 21, 43 L.Ed.2d 482 (1975) (holding that "a necessary

concomitant of Younger is that a party ... must exhaust his state appellate

remedies before seeking relief in the District Court" and noting that according

such deference to already-initiated state proceedings is consistent with a generalno-exhaustion doctrine); see Patsy v. Board of Regents, 457 U.S. at 518-19, 102

S.Ct. at 2568-69 (White, J., concurring in part) (noting that the Court's holding

in Patsy "is also fully consistent with [the Court's] decisions that a defendant in

a civil or administrative enforcement proceeding may not enjoin and sidetrack

that proceeding by resorting to a Sec. 1983 action in federal court" (citing

Huffman )); see also Malachowski v. City of Keene, 787 F.2d 704, 708 (1st

Cir.) (holding that a Sec. 1983 plaintiff must first take available state appeals),

cert. denied, --- U.S. ----, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); Coruzzi v. New

Jersey, 705 F.2d 688, 690 (3d Cir.1983) (similar); Carter v. Maryland

Commission on Medical Discipline, 639 F.Supp. 542, 546 (D.Md.1986)

(similar). For these reasons, it seems to me the majority's view both misreads

Puerto Rico's law and, in any event, runs contrary to relevant Supreme Court

authority.

*

1



The Patsy holding was reaffirmed recently by the Court in Wright v. Roanoke

Redevelopment and Housing Authority, --- U.S. ----, 107 S.Ct. 766, 773, 93

L.Ed.2d 781 (1987) ("the existence of a state administrative remedy does not

ordinarily foreclose resort to Sec. 1983"). This circuit has on a number of

occasions expressly reaffirmed the holding in Patsy that Sec. 1983 plaintiffs

need not exhaust state remedies prior to filing suit in federal court. Exeter-West

Greenwich Regional School District v. Pontarelli, 788 F.2d 47, 52 (1stCir.1986); Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993, 999 (1st

Cir.1983); Developmental Disabilities Advocacy v. Melton, 689 F.2d 281, 286

n. 15 (1st Cir.1982)

E.g., Praprotnik v. City of St. Louis, 798 F.2d 1168, 1172-73 & n. 4 (8th

Cir.1986) (district court was not required to abstain from case brought by a city

employee who alleged he was laid off for exercising his first amendment

rights; fact that federal plaintiff had initiated an appeal to the civil servicecommission did not mandate abstention since he was not required to exhaust his

state administrative remedies prior to filing the federal suit), cert. granted, ---

U.S. ----, 107 S.Ct. 871, 93 L.Ed.2d 826 (1987); Clark v. Yosemite Community

College Dist., 785 F.2d 781, 790 (9th Cir.1986) (federal plaintiff who alleged

his teaching duties were interfered with because of the exercise of his first

amendment rights need not exhaust his state administrative remedies); Stana v.

School Dist. of City of Pittsburgh, 775 F.2d 122, 129-30 (3d Cir.1985) (public

school teacher denied employment opportunities need not exhaust state

remedies); Brantley v. Surles, 718 F.2d 1354, 1358-60 (5th Cir.1983) (public

school cafeteria worker discharged for exercising her constitutional rights need

not exhaust state remedies)

The other lower court cases cited by the dissent are inapposite. They involve

challenges by federal plaintiffs to ongoing coercive state proceedings initiated

against them. The relief sought in those cases runs directly against the

proceedings themselves. We have already noted that abstention is entirely

appropriate in such circumstances. Such circumstances do not, however, prevailhere

The Secretary does not argue that by reinstating Kercado on November 18,

1985, the injury caused by the alleged deprivation on October 28 was somehow

cured or rendered moot. Kercado's claim for emotional and mental distress

arising from the alleged October due process violation survives irrespective of

the subsequent reinstatement. Cf. Carey v. Piphus, 435 U.S. 247, 263-64, 98

S.Ct. 1042, 1052-53, 55 L.Ed.2d 252 (1978)

Kercado also alleged in her complaint that the pretermination hearing granted

her prior to the December 9, 1985, dismissal was constitutionally inadequate.

2

3

4

5



The district court did not decide this issue, and we have no occasion to do so

here.

This is especially true here because the filing of the appeal would still

adversely affect Kercado's rights; her employment and pay would be suspended

until the Board's final decision

The court below did not specify how much of these compensatory damages

stemmed from the deprivation of her procedural due process rights, and how

much stemmed from the improper dismissal. The Supreme Court has stated that

a federal plaintiff alleging a procedural due process violation must "convince

the trier of fact that he actually suffered distress because of the denial of

procedural due process itself." Carey v. Piphus, 435 U.S. at 263, 98 S.Ct. at

1052. Here, Kercado testified that she suffered distress ever since the

Secretary's action on October 28, when her procedural due process rights were

violated. She also testified of the distress she suffered due to the actual loss of

her job. We do not think the failure to identify the portion of compensatory

damages arising from each claim to be of consequence under the circumstances

of this case

6

7

ipcia m. kercado-melendez v. awilda aponte-roque, etc., 829 f.2d 255, 1st cir. (1987)

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